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The Hawai’i Supreme Court Upended Gun Laws

Our United States Supreme Court recently expanded the Bill of Rights’ Second Amendment to allow individual gun rights, expanding the “well-regulated militia” right to bear arms in Heller, Marshall and Bruen. The Hawai’i Supreme Court took issue with those rulings, instead upholding Hawai’i’s “place-to-keep” laws limiting gun use to homes, offices and hot pursuit from those locations. There is no right in Hawai’i to possess a gun in public.

That right was taken away long ago by King Kamehameha in his “law of the splintered paddle,” when he was attacked and almost killed by fishermen who beat him with a paddle. He ruled that the rights of Hawai’ians to be safe in public places outweighed the right to carry a weapon.

To jump back to the USSCT’s rulings, the Court invented a new test based on “historical textualism,” or how the founders would have interpreted the Constitution at the time it was written. The Hawai’i Supreme Court, on the other hand, pointed out that “[James] Madison’s writings suggest that the Second Amendment originated from fear of a federal government power grab. The Second Amendment quelled alarm that the national government might disarm and disband state militias. Those militias could “oppose” a federal army, Madison wrote, and ‘would be able to repel the danger’ of the federal government. The Federalist No. 46, at 301 (James Madison) (Isaac Kramnick ed., 1987).

That’s what they were thinking about long ago. Not someone packing a musket to the wigmaker just in case.”


They didn’t stop there, recognizing that states’ rights trump federal rights. The opinion reads, “The Hawaiʻi Constitution often offers ‘greater protections’ than the federal constitution. [cite] When the two contain look-alike provisions, Hawaiʻi has chosen not to lockstep with the Supreme Court’s interpretation of the federal constitution. Rather, this court frequently walks another way.

Long ago, the Hawaiʻi Supreme Court announced that an ‘opinion of the United States Supreme Court . . . is merely another source of authority, admittedly to be afforded respectful consideration, but which we are free to accept or reject in establishing the outer limits of protection afforded by . . . the Hawaiʻi Constitution.’ [cite] Further, ‘this court has not hesitated to adopt the dissents in U.S. Supreme Court cases when it was believed the dissent was better reasoned than the majority opinion.'”

The Hawai’i Supreme Court ended their 5-0 unanimous opinion with a nod to their heritage: “The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities. The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others. [cite] (‘The law of the splintered paddle . . . shall be a unique and living symbol of the State’s concern for public safety.’). The government’s interest in reducing violence through reasonable weapons regulations has preserved peace and tranquility in Hawaiʻi. A free-wheeling right to carry guns in public degrades other constitutional rights. The right to life, liberty, and the pursuit of happiness, encompasses a right to freely and safely move in peace and tranquility. [cite] Laws regulating firearms in public preserve ordered liberty and advance these rights.”

As if not content with leveling criticisms of the Supreme Court’s gun rulings, the Hawai’i Supreme Court leveled one more insult of the Supreme Court’s interpretation of the Second Amendment, noting that the “well-regulated militia” language in the Second Amendment requires that it be read as part of the amendment, which reads:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

“A textual approach to constitutional interpretation appreciates that words appear (or do not) for a reason. Both clauses of article I, section 17 and the Second Amendment use military-tinged language – ‘well regulated militia’ and ‘bear arms’ – to limit the use of deadly weapons to a military purpose. In contrast, there are no words that mention a personal right to possess lethal weapons in public places for possible self-defense.

First, we examine the prefatory clause to article I, section 17 and the Second Amendment. The opening words carry a military meaning. The ‘well regulated militia’ clause warms up the rest, defining the text. It ‘sets forth the object of the Amendment and informs the meaning of the remainder of its text.’ Heller, 554 U.S. at 643 (Stevens, J., dissenting). Article I, section 17’s first clause offers context and clarity, like preambles do. ‘It cannot be presumed that any clause in the constitution is intended to be without effect.’ See Marbury v. Madison, 5 U.S. 137, 174 (1803).

To English speakers – in 1791, 1868, and now – the first clause narrows the right that the second clause confers.”

And with its opinion, the Hawai’i Supreme Court ripped apart the US Supreme Court’s newly-minted historical test to shoehorn individual gun rights into the Second Amendment, essentially overruling Heller, Marshall and Bruen with pure logic.